COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
British Columbia Teachers' Federation v.
British Columbia Public School Employers'
Association,
2005 BCCA 92
Date: 20050218
Docket: CA031564
Between:
British Columbia Teachers' Federation
Appellant
And
British Columbia Public School Employers' Association
Respondent
Before:
The Honourable Chief Justice Finch
The Honourable Mr. Justice Lambert
The Honourable Madam Justice Prowse
D.C. MacDonald and C.D. Bavis
Counsel for the Appellant
K.E.W. Mitchell
Counsel for the Respondent
Place and Date of Hearing:
Vancouver, British Columbia
31 January 2005
Vancouver, British Columbia
18 February 2005
Place and Date of Judgment:
Written Reasons by:
The Honourable Mr. Justice Lambert
Concurred in by:
The Honourable Chief Justice Finch
The Honourable Madam Justice Prowse
Reasons for Judgment of the Honourable Mr. Justice Lambert:
I.
[1]
The B.C.T.F. raised a grievance which related to alleged violations by some school
boards of a number of public statutes of the Province.
[2]
A question arose about whether the grievance was arbitrable and the parties agreed
to appoint an arbitrator to decide the preliminary question of whether an arbitrator has
jurisdiction to consider and decide a grievance alleging a violation of the legislative
enactments of the Province setting class sizes. We were told that the preliminary question
of jurisdiction submitted to the arbitrator was framed in this way:
6.
Does an arbitrator appointed under the Provincial Collective
Agreement have the jurisdiction to consider a grievance alleging that a school
board has not applied section 76.1 of the School Act and Class Size
Regulation, B.C. Reg. 245/02?
[3]
The argument before the arbitrator was limited to alleged violations of the
enactments relating to class sizes and the arguments before us were similarly limited. I
regard the question now before the Court, brought under s. 100 of the Labour Relations
Code, as being limited in the same way. The parties do not disagree.
II.
[4]
For some years the teachers in each school district bargained with the school board
in the district and reached their own collective agreements for that school district, setting the
conditions of employment applicable to those teachers and school boards. Very often those
collective agreements contained provisions about class sizes, often setting maximum class
sizes for specific school grades.
[5]
With the enactment of the Public Education Labour Relations Act in 1994 the
parties to this dispute became, respectively, the bargaining agent for all the teachers and the
bargaining agent for all the school boards in the Province. Under the Act, any collective
agreement between the parties was required to include, on the one hand, Provincial matters,
namely those affecting costs, including salaries and benefits, workload (including without
limitation, class size restrictions), time worked, and paid leave, and, on the other hand, local
matters on which local boards and teachers had bargained and reached agreement.
[6]
Then, in 2002, with the enactment of the Education Services Collective
Agreement Act and the Public Education Flexibility and Choice Act, with its
amendments to the School Act, the question of class sizes was removed from the collective
bargaining process. After that, class sizes were to be set by statute under the new s. 76.1 of
the School Act, with detailed calculations to be done under the new Class Size Regulation
made under s. 76.1(3).
[7]
By way of illustration, s. 27(3)(d) and (e) of the School Act now read:
27 (3) There must not be included in a teachers’ collective agreement any
provision
...
(d) restricting or regulating a board’s power to establish class size and class
composition,
(e) establishing or imposing class size limits, requirements respecting
average class sizes, or methods for determining class size limits or average
class sizes,
And s. 76(1) read, in part:
76.1 (1) A board must ensure that the average size of its classes, in the
aggregate, does not exceed
(a) for kindergarten, 19 students,
(b) for grades 1 to 3, 21 students, and
(c) for grades 4 to 12, 30 students.
(2) Despite subsection (1), a board must ensure that the size of any primary
grades class in any school in its school district does not exceed
(a) for kindergarten, 22 students, and
(b) for grades 1 to 3, 24 students.
(3) The Lieutenant Governor in Council may, by regulation,
(a) establish the methods to be used by a board for determining average
class size in the aggregate, including, without limitation, methods of providing
for students with special needs,
(b) exclude any type of class, course, program, school or student from the
determination of average class size in the aggregate,
[8]
In the 2002 Legislation there was a provision dealing with purging the collective
agreements that were then in existence of any restriction on class sizes. After some
difficulty with that process, the Education Services Collective Agreement Amendment
Act 2004 was passed to accomplish that purging with legislative vigour, retroactive to 1 July
2002.
[9]
The Labour Relations Code contemplates that a collective agreement will be in
writing. But neither of the parties placed a copy of the present collective agreement before
the arbitrator or before this Court. Apparently the reason was that there is no compilation of
the collective agreement in its totality, but instead there are provisions dealing with
Provincial matters and other provisions dealing with local matters and all are affected by the
legislation to which I have referred and other legislation. So we were asked and expected
by both parties before us to decide the jurisdictional question which I have set out at the
beginning of these reasons without an opportunity to examine the entire collective
agreement.
[10]
I should add that apparently some, at least, of the management rights clauses are
regarded as local matters and the appeal book contained a compilation of management's
rights clauses by school districts with notations for the school districts which do not have a
management rights clause. Counsel for the B.C.T.F. referred also to other provisions of the
collective agreement relating to health, vacancies, layoffs, and teacher working conditions,
which were said to be impacted by any violation of class sizes though the actual provisions
of the collective agreement were not before us or before the arbitrator.
[11]
Without reference to the collective agreement, the parties treated as applicable Part
8 of the Labour Relations Code and particularly ss. 82 and 84(2), which I now set out:
82 (1) It is the purpose of this Part to constitute methods and procedures for
determining grievances and resolving disputes under the provisions of a
collective agreement without resort to stoppages of work.
(2) An arbitration board, to further the purpose expressed in subsection (1),
must have regard to the real substance of the matters in dispute and the
respective merit of the positions of the parties to it under the terms of the
collective agreement, and must apply principles consistent with the industrial
relations policy of this Code, and is not bound by a strict legal interpretation of
the issue in dispute.
...
Dismissal or arbitration provision
...
84 (2) Every collective agreement must contain a provision for final and conclusive
settlement without stoppage of work, by arbitration or another method agreed to by the
parties, of all disputes between the persons bound by the agreement respecting its
interpretation, application, operation or alleged violation, including a question as to
whether a matter is arbitrable.
[12]
I understand that the arbitrator from whose decision this review is taken was
appointed under a clause whose terminology is not effectively different from the terminology
in s. 84(2).
III.
[13]
The arbitrator decided that he lacked jurisdiction to decide the question that was put
to him. His decision is reported at (2004), 124 L.A.C. (4th) 97.
[14]
The arbitrator stated the question before him in these words.
Here, the essential character or true substance of the present dispute is
easily identified. It is the BCTF's allegation that certain school boards are in
violation of Section 76.1 of the School Act and the Class Size Regulation by
establishing class sizes which contravene those enactments. What about the
ambit of the collective agreement? Considering the matter broadly, can it be
said that the dispute as thus identified is one arising expressly or inferentially
from the parties' collective agreement?
[15]
And in answering that question he stated his conclusion in this way:
An arbitral finding that the legislative provisions on class size are implicit in
teachers' collective agreements, thus implying back into those collective
agreements provisions of a kind earlier stripped from the agreements by
legislative warrant, and legislatively declared not permissibly included now or
in the future in teachers' collective agreements, would directly collide with the
clearly-stated intention of the Legislative Assembly; and for that reason would
be incorrect in adjudicative principle.
In my view, I am bound to hold that the dispute is not within the ambit
of the parties' collective agreement.
IV.
[16]
The parties are agreed that as far as the central issue of whether an arbitrator has
jurisdiction over a dispute alleging a violation of the class size legislative enactments is
concerned, the standard of review is correctness; though counsel for the B.C.P.S.E.A. said
that there might be subordinate or peripheral issues where a different standard should be
applicable. But this review hearing was argued on the basis that the relevant standard of
review for the question of jurisdiction was correctness.
V.
[17]
The parties also agreed, of course, that the setting of class sizes in school districts
throughout British Columbia is no longer a proper subject for collective bargaining or for
inclusion in a collective agreement. But the legislation which accomplished that result did
not and does not address the question of whether a dispute about an alleged violation of the
class size requirements of the School Act and the Class Size Regulation is to be resolved
by arbitration under the process mandated for violation of a collective agreement by the
Labour Relations Code, or is to be resolved only by every individual school teacher who is
affected by an alleged violation seeking judicial review of the breach of statute in the
Supreme Court of British Columbia in a proceeding against the individual school board.
[18]
The Legislature did not deal with this question in the Public Education Flexibility
and Choice Act or in the other related legislation to which I have referred, though there are
countless examples of legislative enactments prohibiting resort to tribunals, on the one
hand, or prohibiting resort to the courts, on the other. But what seems certain is the
Legislature cannot have intended either that there be no remedy for violation of the careful
scheme it enacted to set class sizes, or that there be either flexibility or choice in the
remedy. Indeed it would be contrary to the decision of the Supreme Court of Canada in St.
Anne Nackawic v. Canadian Paper Workers, [1986] 1 S.C.R. 704 and the Supreme Court
of Canada cases which have followed it, to decide that if there is jurisdiction in an arbitrator
under the Labour Relations Code and a collective agreement, then there can still be
concurrent jurisdiction in the courts over the same dispute.
[19]
So the real question is whether an arbitrator appointed under the collective
agreement between the parties has jurisdiction over a claim by the B.C.T.F. that there have
been violations by school boards of the class size limits set out in the School Act and in the
Class Size Regulation, when both parties agree that the setting of class sizes themselves
cannot be the subject of collective bargaining nor can they be explicitly set out in the
collective agreement.
VI.
[20]
The Supreme Court of Canada cases which have considered the boundary between
the exclusive jurisdiction of an arbitrator and the exclusive jurisdiction of the Courts have
said that the jurisdiction of the arbitrator extends to those matters "expressly or inferentially"
arising out the collective agreement. (see Weber v. Ontario Hydro, [1995] 2 S.C.R. 929,
per Madam Justice McLachlin at paragraph 54; Regina Police Association v. Regina
Police Commission, [2000] 1 S.C.R. 360, per Mr. Justice Bastarache at paragraphs 24 and
25; and Allen v. Alberta, [2003] 1 S.C.R. 128, per Mr. Justice Le Bel at paragraph 15.)
[21]
In the same cases it has been established that arbitrators and the courts, in
considering the question of jurisdiction in a case affecting employment and governed by a
collective agreement, must take a flexible and contextual approach which seeks to avoid
formalistic classification and must look to the essential nature of the dispute. (Per Mr. Justice
Le Bel in Allen v. Alberta at paragraph 14). We must look to the essential character of the
dispute and not simply to how the legal issues may be framed. (Per Madam Justice
McLachlin in Weber at paragraph 43 and Mr. Justice Bastarache in Regina Police at
paragraph 25.)
VII.
[22]
The fountainhead for resolution of issues about the boundary between the
jurisdiction of an arbitrator and the jurisdiction of the courts in this type of case is McLeod v.
Egan, [1975] 1 S.C.R. 517. There, the collective agreement provided that the standard
working week would consist of 40 hours, eight hours daily, Monday to Friday inclusive, with
provision for rates payable for overtime. The Employment Standards Act of Ontario
provided that the hours of work should not exceed eight in a day or 48 in a week. There was
a strong management rights clause. An employee was disciplined for refusing to work more
than 48 hours in a week. A grievance was brought on his behalf. The arbitrator decided in
favour of the company and on a judicial review proceeding, a judge of first instance and then
the Ontario Court of Appeal upheld the award. The worker appealed to the Supreme Court
of Canada. The appeal was allowed in a unanimous decision. The Supreme Court of
Canada decided that the management rights clause could not authorize work in excess of
the statutory limit and so there was an error in law on the face of the record. The Supreme
Court of Canada did not decide that the Employment Standards Act or any of its
provisions were "incorporated" in the collective agreement. What the Court decided was
that the Act applied to govern the application of the management rights clause in the
collective agreement. There is no indication that any objection was ever taken to the
jurisdiction of the arbitrator on this discipline grievance.
[23]
McLeod v. Egan was carefully considered and followed by the Supreme Court of
Canada in Parry Sound v. Ontario Public Service Employees Union, [2003] 2 S.C.R.
157.
[24]
In that case a probationary employee went on maternity leave and when she
returned to work she was discharged. The collective agreement contained a strong
management rights clause and an express term that a probationary employee could be
discharged for any reason satisfactory to the employer and that such a discharge could not
be arbitrated. The Arbitration Board decided that it should apply the rights set out in the
Human Rights Code. The Divisional Court decided that the Arbitration Board did not have
jurisdiction to do so. The Ontario Court of Appeal considered that the right to fire
probationary employees should be read down so as not to include the power to discharge
for discriminatory reasons, but it decided the case on the basis that the Divisional Court
failed to regard the Employment Standards Act as being directly incorporated in the
collective agreement and that, once that fact was recognized, the Board's jurisdiction was
clearly made out.
[25]
It is important to note that in the Parry Sound case, the Ontario Labour Relations
Act conferred specific powers on arbitrators including this power:
48.(12) ...
...an arbitrator or an arbitration board, as the case may be, has power,
...
(j)
to interpret and apply human rights and other employmentrelated statutes, despite any conflict between those statutes
and the terms of the collective agreement.
[26]
And it is important to note also that the Employment Standards Act, in s. 64.5(1),
provided that a contravention or failure to comply with the Act was enforceable against an
employer who had entered into a collective agreement "as if [the Act] were part of the
collective agreement."
[27]
In Parry Sound in the Supreme Court of Canada a majority of seven to two, in a
judgment given by Mr. Justice Iacobucci, relied explicitly and in detailed analysis on the
decision in McLeod v. Egan.
[28]
Mr. Justice Iacobucci stated his conclusion in the opening paragraph of his
judgment in this way:
This appeal raises questions about the application of human rights and other
employment-related statutes in the context of a collective agreement. More
specifically, does a grievance arbitrator have the power to enforce the
substantive rights and obligations of human rights and other employmentrelated statutes and, if so, under what circumstances? As I discuss in these
reasons, I conclude that a grievance arbitrator has the power and
responsibility to enforce the substantive rights and obligations of human
rights and other employment-related statutes as if they were part of the
collective agreement. Consequently, I would dismiss the appeal.
[My emphasis.]
[29]
In paragraph 23, Mr. Justice Iacobucci said this:
For the reasons that follow, it is my conclusion that the Board was correct to
conclude that the substantive rights and obligations of the Human Rights
Code are incorporated into each collective agreement over which the Board
has jurisdiction. Under a collective agreement, the broad rights of an
employer to manage the enterprise and direct the work force are subject not
only to the express provisions of the collective agreement, but also to
statutory provisions of the Human Rights Code and other employment-related
statutes.
[My emphasis.]
[30]
"The reasons that follow" were largely reasons based on McLeod v. Egan. The
word "incorporated" was chosen by Mr. Justice Iacobucci in the first sentence of paragraph
23 rather than "as if they were part of the collective agreement" which were the words that
he chose in paragraph 1, though in the second sentence of paragraph 23, which I have
emphasized, the employer's right to manage or direct the workforce is said to be subject to
the express provisions of the collective agreement and the statutory provisions of the
Human Rights Code and other employer-related statutes. It does not say that the statutory
provisions need only be applied if they are "incorporated" in the collective agreement.
[31]
It is also important to note that it is not the Human Rights Code itself that is said, in
the first sentence of paragraph 23, to be "incorporated" in the collective agreement, but "the
substantive rights and obligations of the Human Rights Code".
[32]
In further reference to the semantical question turning on the word "incorporated", it
should be noted that in describing the Arbitration Board's decision in paragraph 7 of his
reasons, Mr. Justice Iacobucci used the words:
...Section 48(12)(j), in other words, imports the substantive rights of the
Human Rights Code into a collective agreement...
[My emphasis.]
[33]
Perhaps the most important point in interpreting the majority reasons in Parry
Sound is that the relevant legislation, namely s. 48(12)(j) of the Labour Relations Act,
neither expressly nor impliedly incorporates the Human Rights Code in collective
agreements, but instead empowers arbitrators to "interpret and apply Human Rights and
other employment-related statutes, despite any conflicts between those statutes and the
terms of the collective agreement". The power to apply a statute in interpreting an
agreement is not normally thought of as incorporating the statute into the agreement.
[34]
The analysis is somewhat different with respect to s. 64.5(1) of the Employment
Standards Act which provides that the Act is enforceable against an employer "as if it was
part of the collective agreement". So that provision could be said to constitute an express
incorporation of the Act in the collective agreement.
[35]
Perhaps it was the effort to straddle both the human rights issue and the
employment standards issue in a single statement representing a single conclusion which
caused the Supreme Court of Canada to use the word "incorporate". But since there is no
"incorporation" of the Human Rights Code, but simply an express power to apply it, and
since the decision of the Supreme Court of Canada rests principally on the application of the
Human Rights Code, I conclude that it is not necessary in deciding whether to apply an
employment-related statute to find that the statute has been "incorporated" in the collective
agreement.
VIII.
[36]
That brings me back to this case.
[37]
It seems to me that it is significant that the subject of class sizes was negotiated in
collective bargaining between teachers and school boards before the 2002 legislation and
was clearly, in the past, regarded by the parties as a term or condition of employment. The
fact that the subject of class sizes can no longer be negotiated nor have any place in the
collective agreement of the parties does not make that subject any less a term or condition
that affects the employment relationship. The legislation simply transfers those terms or
conditions from negotiated determination to statutory determination. So I regard class sizes
and aggregate class sizes as a significant part of the employment relationship. If the
statutory determination of class sizes is violated that would surely constitute an improper
application of the management rights clauses in the collective agreement, in breach of s.
76.1 of the School Act and the Class Size Regulation. But it would also affect other terms
of the collective agreement such as a decrease in the number of teaching staff leading to
dismissals or lay offs, and such as health issues arising from stress. These are only
examples. The point is that such a violation is closely connected in a contextual way to the
interpretation, operation, and application of the collective agreement and directly affects it.
[38]
Bearing in mind the precepts that I have drawn from the Supreme Court of Canada
decisions and which I have set out in Part VI of these reasons, I believe that a flexible and
contextual approach to the position that should be adopted by an arbitrator on the
application of a statutory provision to the interpretation, operation, and application of a
collective agreement, and to an alleged violation, does not depend on an "incorporation" of
the statutory provision in the collective agreement but rather on whether there is a real
contextual connection between the statute and the collective agreement such that a violation
of the statute gives rise, in the context, to a violation of the provisions of the collective
agreement, often, but not exclusively, a violation of the right expressed or implied in the
collective agreement to set principles for management of the workforce in accordance with
the laws of the Province. In short, the collective agreement must be interpreted in the light
of the statutory breach.
IX.
[39]
I would grant the review application.
[40]
I would set aside the arbitrator's award on the issue of jurisdiction made on 13
January 2004.
[41]
I would decide that a grievance arbitrator under the collective agreement has
jurisdiction to determine whether there has been a violation of s. 76.1 of the School Act, or
the Class Size Regulation, or both, and to interpret the collective agreement accordingly.
[42]
I would award the costs of this review to the B.C.T.F. against the B.C.P.S.E.A.
“The Honourable Mr. Justice Lambert”
I agree:
“The Honourable Chief Justice Finch”
I agree:
“The Honourable Madam Justice Prowse “